The Supreme Court of Canada will deliver a ruling Thursday on an issue that has become increasingly fraught: the Crown's constitutional duty to consult with Indigenous peoples — and a decision in favour of the First Nation in question could have sweeping consequences for Canada's legislative process.

The Mikisew Cree First Nation, a band in northern Alberta, is appealing a ruling from the Federal Court of Appeal that said there is no obligation for cabinet ministers to consult with First Nations peoples before introducing legislation that may have an impact on their constitutionally protected Aboriginal and treaty rights.

The problem for this First Nation stems from the former Conservative government's 2012 omnibus budget bill, the Jobs, Growth, and Long-Term Prosperity Act, a piece of legislation that dramatically amended the Navigable Waters Act and overhauled the Canadian Environmental Assessment Act.

They say the changes — essentially reduced regulatory oversight of waterways and a less burdensome environmental review process — affected their protected hunting, fishing and trapping rights; these rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and enshrined as constitutional rights after the passage of the 1982 Constitution Act.

The minister, they argue, should have consulted with them before making considerable changes to a legislative framework that could undermine treaty-protected rights. Government lawyers have argued the legislative process should be beyond judicial review.

If the top court sides with the Mikisew, the legislative drafting process could face massive — and potentially onerous — new changes that would demand First Nations peoples be consulted before any bill that could affect their rights is even tabled in Parliament.

The decision will be made public at 9:45 a.m. ET on Thursday.

Broad implications
While there is presently an obligation on the executive to consult with Indigenous peoples before making a decision that could affect their rights, the government has said the legislative process is wholly separate and does not trigger a duty to consult as it would be an impractical interference that would severely impede in the policy-making process.

Federal lawyers also argue that forcing Ottawa to give Indigenous representatives a seat at the table diminishes Parliament. It could also put more value on some rights than others, giving treaty rights preference over other Charter rights, they have argued in court.

Presently, the Crown typically carries out its obligation to consult with potentially impacted First Nations through other means, like with the National Energy Board when a natural resources project could infringe on protected Aboriginal rights or through a Crown consultation team — as was done by the Liberal government in the case of the Trans Mountain pipeline expansion project.

Supreme Court quashes seismic testing in Nunavut, but gives green light to Enbridge pipeline
In August, the Federal Court of Appeal found the Crown consultation team in that case did not adequately consult with Indigenous peoples as it was not a meaningful or two-way dialogue between government and First Nations.

It said government consultants were glorified "note-takers" that simply reported Indigenous concerns back to cabinet. While they could have imposed restrictions on the project, they did not.

On these grounds, the second-highest court quashed cabinet approvals for the multi-billion dollar project. Thus, the duty to consult has become a matter demanding more attention.

The appeal is being closely watched. Five provincial attorneys general and seven Indigenous groups have filed as interveners.
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From CBC

I dunno. I have challenged people on the Canadian internet with the question -- are our aborigial brothers (a) Canadian citizens like the rest of us, or (b) do they have a gold-plated, top-level, first place citizenship? Or (c) are they citizens of an entirely different sovreign entity, under the Queen?

Because the government doesn't work for you and me like this. It seems to me the government treats native people like they're customers and it treats us like we're employees.

Canada's lawmakers do not have a duty to consult with Indigenous people before introducing legislation that may affect constitutionally protected Indigenous and treaty rights, the Supreme Court ruled Thursday.

The decision will be welcomed by the federal government, which has argued such an obligation would be far too onerous and slow down the legislative process considerably.

In its 7-2 decision, the top court has ruled against the Mikisew Cree First Nation on the duty to consult matter.

The First Nation in Alberta had argued that two omnibus budget bills introduced by the former Conservative federal government in 2012 affected their constitutionally protected treaty rights because they amended regulatory protections for waterways and the environment, threatening their established right to hunt, trap and fish on their traditional territory. These rights were guaranteed by the Crown when it signed Treaty 8 in 1899, and enshrined as constitutional rights after the passage of the Constitution Act of 1982.

Who is telling the truth? Government news or this researcher/scholar?
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What the Supreme Court ruling means for Indigenous consultation
October 12, 2018 6.51pm EDT
by Dwight Newman
Professor of Law and Canada Research Chair in Indigenous Rights in Constitutional and International Law, University of Saskatchewan

Must governments in Canada consult with Indigenous communities prior to adopting legislation that could affect their rights?

The Supreme Court of Canada’s decision in the Mikisew Cree case is a perfect example of a situation where the headlines and the trend lines differ in important ways.

The headlines suggest the Mikisew Cree lost and that the Supreme Court of Canada has ruled that there is no obligation by governments to carry out the formal legal duty to consult with Indigenous communities before passing a law.

The duty to consult has been in the news a lot in recent years.

While there are some complexities, the rules basically require governments to consult with Indigenous communities proactively before making administrative decisions that could affect their rights. In one sense, the recent Supreme Court ruling indicates that the court will not extend rules on the duty to consult to the development of legislation itself.

The court ruled against the Mikisew Cree claim that Stephen Harper’s Conservative government should have consulted on its 2012 omnibus bills C-38 and C-45 that altered federal environmental legislation. Those omnibus bills were the political trigger for Idle No More, a nationwide Indigenous protest movement.

But they were also the trigger for a course of litigation that has now been brought to a thudding halt. After initial success in the Federal Court, the Mikisew Cree were unsuccessful in the Federal Court of Appeal, and have now lost in the Supreme Court of Canada.

Judges differed dramatically
But we need to get into the legal weeds. When we do that, we see some trend lines that are quite different from the headlines.

The Supreme Court of Canada’s decision is actually immensely complex, as the court split into four groups of judges who wrote separate reasons.

While they are all unanimous in the result, their reasons for getting there differ dramatically. All are in agreement on a technical jurisdictional point about which cases should go to the federal court system, and that leads to agreement on the result even when there are major differences in reasoning.

Seven of the nine judges agree that the technical rules known as the duty to consult doctrine do not apply to this context, with only Justices Rosalie Abella and Sheilah Martin suggesting that it should.

But three of the seven who ruled against this main claim have signed on to a judgment in which they effectively invite new litigation in future cases.

The judgment of Justice Andromache Karakatsanis, supported by Chief Justice Richard Wagner and Justice Clément Gascon, includes suggestions that different arguments about how a particular principle underlying the duty to consult — a principle called “honour of the Crown” — might still affect the legislation-making process in some other ways.

So a majority of five judges has actually indicated that they are still open to future arguments on these issues.

Crafting future arguments?
The other four judges object in strong terms.

In a solo judgment also supported by three other judges in yet another opinion, Justice Russell Brown says:

“By raising this quixotic argument about the honour of the Crown — which neither the appellant nor any of the intervenors even thought to raise — my colleague (Justice) Karakatsanis … would cast the law into considerable uncertainty.”

In this comment, Justice Brown points out that the majority judges are not only inviting new litigation, but actually crafting potential arguments for litigants to use.

What’s it all mean?

It signifies that the trend lines of the Supreme Court decision diverge from the headlines. While it’s accurate for the media to report that the Mikisew Cree lost on their claim, the underlying developments in the case suggest that these issues are far from resolved.

Some of those commitments — the ones the Court ruled on — are the Constitutional requirements found in Section 35 of the Constitution Act of 1982.

The Justin Trudeau government has also made additional policy commitments and is in the process of adhering to provisions in the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).

Article 19 of UNDRIP sets out an expectation of consultation with Indigenous peoples “in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”

But even with its purported commitments to UNDRIP, the Trudeau government has not been carrying out the consultation that Article 19 would require before passing legislation.

In another case ... about land which is now under water ...
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First Nation wants appeal court to nix argument about reserve statusThe Court of Appeal for Saskatchewan will consider Peter Ballantyne Cree Nation's request later this month.

ALEX MACPHERSON, SASKATOON STARPHOENIX Updated: October 10, 2018

Lawyers representing a Saskatchewan First Nation want to appeal a decision that allows the provincial government and SaskPower to argue that 600 acres of flooded land near Southend was never properly designated as a reserve and is in fact Crown land.

In an emailed statement, Berger said the province and SaskPower are attempting to argue that — 89 years after the land was set aside for the First Nation and 37 years after that decision was confirmed — it was never a reserve.

“We will argue that after 89 years, it is too late to challenge (Peter Ballantyne Cree Nation’s) right to their land and, after 37 years, it is too late to challenge the order in council (that confirmed the transfer),” Berger said in the statement.

Government spokesman Drew Wilby said it would be inappropriate to comment because the matter remains before the courts.

Peter Ballantyne Cree Nation’s request to appeal Smith’s decision is the latest development in a 14-year-old lawsuit between one of Saskatchewan’s largest First Nations and the provincial government over the land, which has been underwater for decades.

The initial lawsuit filed by Ron Michel, who was then chief of the First Nation, argued that members of the First Nation used the land, called the Southend Reserve, for hunting, fishing, trapping and travel — and never surrendered their claim on it.

The Saskatchewan Court of Appeal ruled two years ago that the province and SaskPower were committing a “continuous trespass” against the First Nation by allowing the Whitesand Dam on the Reindeer River, which was completed in 1943, to flood the land.

Because the original judge did not consider possible defences, however, the appellate court sent the matter — which includes the First Nation’s request to repossess the land — back to the lower Court of Queen’s Bench, where it will be decided.

The hearing in August involved a request by the province and SaskPower to amend their earlier statement of defence to argue the land was, unlike other reserves, transferred to the province 80 years ago in the Natural Resources Transfer Agreement.

Lawyers for the federal government and Berger “vehemently” opposed the government’s request, though for different reasons. Berger argued it had no merit because the land was set aside by a surveyor almost nine decades ago, and subsequently confirmed in 1982.

Berger went on to argue that the provincial government recognized it as a reserve in the 1992 Treaty Land Entitlement Framework.

In his decision — which sets the stage for the province and SaskPower to attempt to overturn the ruling that they trespassed by allowing the dam to flood the land — Smith said it “serves the interest of the parties to fully canvass any outstanding issues.”

“None of the above should be taken to suggest that Saskatchewan or (SaskPower) are entitled to succeed on the grounds advanced by their proposed amendment. Rather, it is to say only that they are entitled to make the arguments before (a judge),” Smith wrote.

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